Excerpt: - .....public, that is, a class or a large section or the entire general public, then the endowment is a public religious one. on the other hand, if such worshippers belong to a private family or a few private families, the nature of the endowment is a private religious one. in the present case, the settlement record makes it quite clear that the nature of the present endowment is a public religious one as the beneficial owner is a deity i.e., ratanti kalimata and the worshippers entitled as of right to worship are the public. the property is given and held for that particular purpose, namely, religious purpose, that is, the worship of the deity. therefore the only question which arises is whether the defendants are trustees. it has already been decided in many decisions not only of this court.....

Judgment:

K.C. Chunder, J.

1. This is an appeal against an appellate decree of the Subordinate Judge of Malda reversing that of the Munsif, 1st Court of the same place. The facts as far as necessary for decision of this second appeal are not very much in dispute.

2. It appears that one Mohanta Rudrananda Giri Goswami sued on behalf of the Hindu villagers of five villages for recovery of possession of 'Certain properties from the defendants. He brought the suit in a representative capacity under Order 1, Rule 8, Civil P. C. No sanction under Section 92, Civil P. C. was taken or even applied for. It is clear that in the Settlement Record of Rights this property was stated as 'Jimma dakhal' Abhoy Charan Sarkar 'gramya Sadharan pakshay' and the property is shown as the property of Ratanti Kalimata for Kali 'pujah'. The present defendants are said to be the custodians of the property on the death of Abhoy Charan Sarkar. The suit was for removal of these defendants as they had neglected to perform the Ratanti Kali 'pujah' as required.

3. The defence was that they were performing three other Kali 'pujahs' though not the Ratanti Kali 'pujah' and further that sanction under Section 92, Civil P. C. was essential to bring this suit which was a suit for removal of trustees from a public and 'religious endowment and as the worshippers who had the right to worship were the public of that village only the sanction should have been taken by the villagers of that village and not of any other surrounding village. The question which has been agitated in this second appeal is the question of Section 92, Civil P. C.

4. The learned Munsif held that sanction was necessary but he was wrong in holding that the beneficial owners of the trust property were the public. The learned Subordinate Judge on the other hand held that the beneficiary of the trust was the deity but as the public was not the beneficiary therefore Section 92 did not apply. Both of them are wrong. The beneficial owner in case of every religious trust except when it is a trust in favour of a religions institution like a 'math' etc. is the deity. In a previous decision of mine I have already pointed out that under the Hindu Law there are two different classes of religious endowments, one in favour of religious institutions like a 'math' where the deity is immaterial and the institution is the primary thing and property belongs to the head of the institution as its owner as representing the institution itself. The other class is where the deity is the principal thing and the beneficial owner of the property is the deity.

In the present case, there can be no dispute that the deity is the principal thing. Therefore the beneficial owner in the present case is the deity and neither the public nor anybody else. In the case of a public trust as also in the case of private trusts the deity is always the beneficial owner. The nature of the trust is determined according to the character of the persons entitled as of right to worship. If such worshippers are the public, that is, a class or a large section or the entire general public, then the endowment is a public religious one. On the other hand, if such worshippers belong to a private family or a few private families, the nature of the endowment is a private religious one. In the present case, the Settlement Record makes it quite clear that the nature of the present endowment is a public religious one as the beneficial owner is a deity i.e., Ratanti Kalimata and the worshippers entitled as of right to worship are the public. The property is given and held for that particular purpose, namely, religious purpose, that is, the worship of the deity.

Therefore the only question which arises is whether the defendants are trustees. It has already been decided in many decisions not only of this Court but of other Courts as well that the trustees mentioned in Section 92 need not be 'de jure' trustees --'de facto' trustees will sufficiently attract the operation of the section. Therefore as the Settlement Record shows that Abhoy Sarkar was in custody on behalf of the deity, that is, he was a 'de facto' trustee whatever may be his legal right to hold the position of a trustee, Section 92 will apply. In the present case, as no sanction was taken under Section 92, Civil P. C. and the suit was brought under Order 1, Rule 8 of the Code the suit was not maintainable and therefore the suit was rightly dismissed by the learned Munsif and the learned Subordinate Judge wrongly reversed that decision. It is not necessary for me, as no sanction at all was taken by anybody, to go into the next question whether sanction should be taken by the villagers of that locality or can be taken by other persons as well as being interested as actual worshippers of the deity.

5. The appeal is therefore allowed. The decreeof the learned Subordinate Judge is set aside andthat of the learned Munsif is restored. Each partywill pay its own costs in both the Courts, namely,the Subordinate Judge's Court as well as thisCourt.